Is the exemption from
tefillin for women really grounded in the exemption from Torah study? I can see the Mekhilta argues that, but the
Shulhan Arukh seems to say otherwise.
Don’t we follow the Shulhan Arukh’s lead on such matters?
Naturally, anyone
interested in practical halakhah and the tradition of its transmission must be
concerned with what the Shulhan Arukh and to account for it. In this case, we will see that nothing in the
Shulhan Arukh is (or actually could be) in conflict with the analysis in the
Mekhilta.
Why cite the Mekhilta to
begin with? In general, I prefer to cite
sources that are the earliest citations of a given idea. It gives a sense of where in time and place
they originate and also helps us understand how those ideas played out for
later authorities and interpreters. I
learned this method most powerfully in a course on rishonim (medieval
authorities) I took years ago with Professor Haym Soloveitchik at Yeshiva
University. Professor Soloveitchik was
painstaking in tracing ideas backwards and forwards in time and emphatic that
one could not fully understand an idea without understanding where it came from
and what kinds of changes and developments it had undergone along the way.
Similarly, if there is a
baraita in the Babylonian Talmud with a parallel in the Tosefta, I will also
begin by quoting the Tosefta and then add in the ways in which its transmission
in the Babylonian Talmud may tell a different story. If nothing is different, I might not mention
the Talmud’s version at all, since the idea originated in the Tosefta and
nothing changes meaningfully in its later retelling.
In this case, the
Mekhilta is indeed the first instance of the claim that tefillin is tied to
Torah study, but the idea—as I noted in my original piece—is reproduced in the
Babylonian Talmud on Kiddushin 34a.
Since some have questioned this, let me reproduce that reproduction
here.
Mishnah Kiddushin 1:7
states that positive commandments caused by time (i.e. they apply at some times
and not at others), are gendered: men are obligated in them and women are
exempt from them. The Talmud asks whence
this is so:
תלמוד בבלי קידושין
לד.
ומצות עשה שהזמן
גרמא - נשים פטורות. מנלן? גמר מתפילין, מה תפילין - נשים פטורות, אף כל מצות עשה
שהזמן גרמא - נשים פטורות; ותפילין גמר לה מתלמוד תורה, מה תלמוד תורה - נשים
פטורות, אף תפילין - נשים פטורות.
Talmud
Bavli Kiddushin 34a
“Women
are exempt from positive commandments caused by time.” Where is this from? It is derived from tefillin; just as
women are exempt from tefillin, so too women are exempt from all
positive commandments caused by time. And
tefillin is derived from the obligation in Torah study; just as women
are exempt from Torah stud, so too women are exempt from tefillin.
This passage says exactly what the Mekhilta says, and
adds a step: 1) Torah study is gendered; this is assumed and unsourced. (A few pages earlier, this notion is anchored
in a gendered reading of the word banim, which is clearly a post facto
Scriptural anchoring of a fact already assumed.) As we saw, rabbinic sources uniformly and
unanimously assert that women and slaves are exempt from Torah study. 2) Women are exempt from tefillin because
they are exempt from Torah study. 3)
Women are exempt from positive commandments caused by time because tefillin
is such a commandment and all other similar mitzvot are compared to it
for purposes of their gendered nature.
I was not engaging the question of the broader exemption
from positive commandments caused by time referred to by Mishnah Kiddushin
1:7. Those interested in the history of
this category can now see a thorough treatment by Elizabeth Shanks Alexander in
her recent Gender and Timebound Commandments in Judaism. For our purposes, what is important is that
the Talmud here presents tefillin as generative of, not generated
by the gendered exemption from positive commandments caused by time. Tefillin’s gendered nature is clearly
presented here as derivative of a gendered conception of Torah study. As we saw from the Mekhilta, that gendered
conception is actually just one part of a broader class conception that exempts
women and slaves from Torah study.
Indeed, this basic relationship between Torah study and
tefillin spelled out in the Mekhilta and in Talmud Bavli Kiddushin is
unambiguously affirmed by the Rambam:
ספר המצוות לרמב"ם מצות עשה יג
ושתי מצות
אלו אין הנשים חייבות בהן לאמרו יתעלה (ס"פ בא) בטעם חיובם למען תהיה תורת
י"י בפיך ונשים אינן חייבות בתלמוד תורה. וכן בארו במכילתא.
Rambam,
Sefer Hamitzvot, Positive Commandment #13
Women
are not obligated in these two commandments (of the tefillin of the arm and of
the head), on account of the reason the Exalted One gave for their obligation: “So
that the Torah of God will be in your mouth.” Women are not obligated in Torah study. And so they explained in the Mekhilta.
Seems simple, no?
But another passage in the Babylonian Talmud and the ways in which it is
quoted have caused some confusion on this front.
Mishnah Berakhot 3:3 lays out a number of exemptions and
obligations as well:
משנה מסכת ברכות
פרק ג משנה ג
נשים ועבדים וקטנים
פטורין מקריאת שמע ומן התפילין וחייבין בתפלה ובמזוזה ובברכת המזון:
Mishnah Berakhot 3:3
Women, slaves and minors are exempt from
reading the Shema and from tefillin and are obligated in prayer, mezuzah
and the grace after meals.
On its own, this is
nothing more than a collection of mitzvot that do and don’t divide by
class. While gender is one subcomponent
here, we see that slaves and minors are exempted as well. The Mishnah tells us nothing about motivations,
origins or values. In the printed
versions of the Babylonian Talmud, we have the following five short statements
that explore this only briefly:
תלמוד בבלי מסכת
ברכות דף כ עמוד ב
1) קריאת שמע,
פשיטא! מצות עשה שהזמן גרמא הוא, וכל מצות עשה שהזמן גרמא נשים פטורות! - מהו
דתימא: הואיל ואית בה מלכות שמים - קמשמע לן.
2) ומן התפלין
פשיטא! - מהו דתימא: הואיל ואתקש למזוזה - קמשמע לן.
3) וחייבין בתפלה
דרחמי נינהו. - מהו דתימא: הואיל וכתיב בה +תהלים נ"ה+ ערב ובקר וצהרים,
כמצות עשה שהזמן גרמא דמי - קמשמע לן.
4) ובמזוזה פשיטא!
- מהו דתימא: הואיל ואתקש לתלמוד תורה - קמשמע לן.
5) ובברכת המזון
פשיטא! - מהו דתימא: הואיל וכתיב +שמות ט"ז+ בתת ה' לכם בערב בשר לאכל ולחם
בבקר לשבע, כמצות עשה שהזמן גרמא דמי - קמשמע לן.
Talmud
Bavli Berakhot 20b
1) “The reading of the Shema”—That is
obvious [that women are exempt]! It is a
positive commandment caused by time, and women are exempt from all positive
commandments caused by time! What might
you have thought? Since it includes the acceptance of the sovereignty of heaven
[women ought to have been obligated].
The Mishnah comes to clarify that this is not so.
2) “And from tefillin”—That is obvious
[that women are exempt]! What might you
have thought? Since it is juxtaposed
with mezuzah [in the Torah, women ought to be obligated in it, just as they are
obligated in mezuzah]. The Mishnah comes
to clarify that this is not so.
3) “And are obligated in prayer”—Because
it is a request for mercy. What might
you have thought? Since the verse
“Evening, morning and afternoon” is written about prayer, we might have thought
that it is a positive commandment caused by time [which would then be
gendered]. The Mishnah comes to clarify that
this is not so.
4) “And in mezuzah”—That is obvious
[that women are obligated]! What might
you have thought? Since it is juxtaposed to Torah study [in the Torah, women
ought to be exempt from it, just as they are exempt from Torah study]. The Mishnah comes to clarify that this is not
so.
5) “And in the grace after meals”—That
is obvious! What might you have
thought? Since the verse says “When God
gives you meat in the evening to eat and bread in the morning to satisfy you,”
we might have thought that [blessing after food] it is a positive commandment
caused by time [which would then be gendered].
The Mishnah comes to clarify that this is not so.
This text confirms one
key thing we have already seen. Again,
Torah study is assumed to be gendered; this point needs no proof and is so
clear that it might be used—even erroneously—to derive other points of
law. In addition, we see that mezuzah
and Torah study function as fixed, opposite points: women are obviously
obligated in the former and obviously exempt from the latter. The only question is whether tefillin should
follow the former or the latter in terms of its gendered nature. This also mirrors the Mekhilta passage I quoted
in my piece, which acknowledges this potential ambiguity. The Talmud here confirms the Mekhilta’s
interpretation there: Tefillin is to be aligned with Torah study, not with
mezuzah.
However, there is an
inkling of something different here.
Five times the gemara treats the Mishnah’s rulings as obvious; five
times it explains how the Mishnah prevents us from being led astray by other
ways of thinking. [There was originally
an exclamation of פשיטא prior to the section
on prayer as well; its erroneous erasure by a scribe misreading Rashi will not
concern us here. A quick glance at the
Tosafot on the top of the page confirms this point, as do the manuscript
witnesses to this passage.] What is obvious
about the Mishnah’s rulings? The
Talmudic passage here seems to anchor that obviousness in our knowledge of the
rule that positive commandments caused by time are gendered and those that are
not are not. If one knows that rule,
wouldn’t one know all of the Mishnah’s rulings?
Put another way, what does this Mishnah add that we didn’t already know
from Mishnah Kiddushin 1:7? The Talmud
must provide errant pathways we might have followed in each case in order to
justify the seeming redundancy of this Mishnah.
Another version of the
gemara—found in many manuscripts and preserved in the Rif, makes this linkage between
Mishnah Berakhot 3:3 and Mishnah Kiddushin 1:7 by way of explanation of the
Mishnah’s rulings rather than by being astonished by its apparent superfluity. Here is that version, quoted from the Rif:
רי"ף מסכת
ברכות דף יא עמוד ב-יב עמוד א
קרית שמע ותפילין
דהוה ליה מצות עשה שהזמן גרמא וכל מצות עשה שהזמן גרמא נשים פטורות תפלה ומזוזה
וברכת המזון דהוה ליה מצות עשה שלא הזמן גרמא וכל מצות עשה שלא הזמן גרמא נשים
חייבות
Rif Berakhot 11a-12b
The reading of the Shema and tefillin
are positive commandments caused by time, and women are exempt from all
positive commandments caused by time.
Prayer, mezuzah and the grace after meals are positive commandments not
caused by time, and women are obligated in all positive commandments not caused
by time.
Both versions of the
gemara seem to claim that we know that the reading of the Shema and tefillin are
gendered because they belong to the category of commandments that are positive
and caused by time. In the first version
of the gemara, this is a truth that endures despite potential evidence to the
contrary; in the second version, it is a simple assertion.
Does this mean that,
according to this gemara, women’s exemption from tefillin is a consequence of
the gendered nature of the set of positive commandments caused by time? You might argue that the gemara here rejects
the Mekhilta and its grounding of tefillin in Torah study. As further evidence for this claim, one might
point to a number of medieval and early modern authorities that seem to use
similar language. Here are a few
examples:
ספר החינוך מצוה תכא
ונוהגת מצוה זו בכל מקום ובכל זמן, בזכרים
אבל לא בנקבות, לפי שהיא מצות עשה שהזמן גרמא...
Sefer Hahinukh #421
This mitzvah [of tefillin] applies in all
times and places, to men but not to women, because it is a positive commandment
caused by time…
בית יוסף אורח חיים
סימן לח
ונשים ועבדים
פטורים. משנה בפרק מי שמתו (ברכות כ.) ויהיב טעמא בגמרא משום דהוי מצות עשה שהזמן
גרמא וכל מצות עשה שהזמן גרמא נשים פטורות.
Beit
Yosef OH 38
“Women
and slaves are exempt [from tefillin].
This is a Mishnah in the 3rd chapter of Berakhot. The gemara gives an explanation: on account
of it being a positive commandment caused by time, and women are exempt from
all positive commandments caused by time.
שולחן ערוך אורח
חיים הלכות תפילין סימן לח סעיף ג
נשים ועבדים פטורים
מתפילין, מפני שהוא מצות עשה שהזמן גרמא.
Shulhan Arukh OH 38:3
Women and slaves are exempt from
tefillin, because it is a positive commandment caused by time.
Does this sort of language
indicate that the Mekhilta is rejected in favor of another explanation? Not at all. R. Refael Mordechai Yehoshua Shaul (Turkey,
18th-19th c.) comments on this issue in his Dover
Mesharim on Rambam Bikkurim 11:17.
He attacks Sefer Hahinukh for stating that women are exempt from
tefillin because it is a positive commandment caused by time. How can this be, given that the Talmud in
Kiddushin is explicit that women’s exemption from tefillin is derivative of Torah
study and is generative of the exemption from positive commandments
caused by time? He notes that the Rambam
in Sefer Hamitzvot is consistent with the gemara and the parallel passage in
the Mekhilta. He leaves this challenge unresolved.
His son R.
Avraham Shaul (Turkey, 19th c.), in a later gloss on this passage, notes
that the same challenge can be leveled against the Beit Yosef, the Bah and the
Perishah, all of whom use similar language to that of the Hinukh. R. Avraham resolves the problem:
...לפי קעד"ן לומר דלא ניידי כל הני
רבוות' מהאי היקשא דתפילין מת"ת ילפי' כמו שאמרו בש"ס דקידושין הנז' אבל
הא מיהא תפילין מ"ע שהזמן גרמא היא דמינה נפקא כל מ"ע דהז"ג
ותפילין עצמם היא מתלמוד תורה ועליה קאי כל הני מלכי רבנן אבל אין כונתם לפסוק
עיקר דין תפילין עצמם מהיכא נפקא אלא כונתן לפסוק דנשים פטו' ממצוה זאת דתפילין
והיינו טעמא משום דהוא מ"ע שהז"ג אבל תפילין עצמם אה"נ דנפקא
מהיקשא דת"ת ותדע דכן הוא דהרי בש"ס דברכות ד"כ נקט משום שהיא
מ"ע שהז"ג כמ"ש רש"י ז"ל יע"ש וקאי עלה דקידושין
דל"ד ע"א דאלת"ה קשיא דאיך נקטו הכא בש"ס דברכות דטעמא דנשים
פטורות הוא משום דתפילין הם מ"ע שהז"ג וכל מ"ע שהז"ג נשים
פטורות והתם בקידושין נקט דתפילין נשים פטורות משום דגמר לה מת"ת אלא מוכרח
הדבר לומר כדכתיבנא ופשוט.
…In my humble opinion, none of our masters
departed from the Talmud’s derivation of tefillin from Torah study in
Kiddushin. Nonetheless, tefillin is
indeed a positive commandment caused by time from which we derive [the gender
exemption from] all other positive commandments caused by time, while tefillin
itself is derived from Torah study and all of those majestic rabbis were assuming
this. Their intention was not to make a
ruling regarding the origins of [the gendered exemption from] tefillin Rather, their intention was to rule that
women are exempt from this mitzvah of tefillin and the explanation is because
it is a positive commandment caused by time, but tefillin itself is certainly
derived from the connection with Torah study.
This must be true, because Berakhot 20 states that women are exempt from
tefillin because it is a positive commandment caused by time (see Rashi there)
and this assumes [the process laid out in] Kiddushin 34a. If you don’t say this, then how could the
Talmud in Berakhot given the reason for women’s exemption from tefillin being
on account of its being a positive commandment caused by time while the Talmud
in Kiddushin takes the position that women are exempt because we derive it from
Torah study. Rather, it must be as I
said, and the matter is simple.
In other words, R.
Avraham argues that there is no reason to assume that the gemara in Berakhot is
rejecting the gemara in Kiddushin.
Rather, the gemara in Kiddushin is, like the Mekhilta, focused on
driving values and origins. That passage
plainly and unambiguously states that the gendered nature of tefillin is derivative
of Torah study and generative of positive commandments caused by time. The gemara in Berakhot is reflecting that
once that derivative and generative work has been done, tefillin resides in the
very category it helped create: the set of positive commandments caused by time. Therefore, though its gendered nature is
legally and logically prior to that category, it nonetheless lives in that
category once it generates it. All the
gemara in Berakhot notes is that we would expect all positive commandments
caused by time to be gendered and therefore the Mishnah need not rule on
specific cases. When the Beit Yosef says
יהיב טעמא, he means that the gemara provides an
explanation, not an etiology, for tefillin’s gendered nature. The gemara is saying that it makes sense (or
is obvious) that the Mishnah rules that women are exempt from this mitzvah
given that it is, after all, a positive commandment caused by time. Similarly, the Shulhan Arukh merely quotes
this same language and appeals to the reader to understand why it makes perfect
sense that tefillin is gendered; after all, they belong to a gendered
category. This is not a comment weighing
in on the sugya in Kiddushin, which is a discussion of origins, which was my
focus. There is no way to dismiss that explicit
sugya in Kiddushin and its channeling of the Mekhilta. The Shulhan Arukh’s language merely reflects the
end result of that multi-step process: tefillin generates and ultimately
resides in the category of positive commandments caused by time.
The concern around guf
naki seems serious and seems like it might track with one’s level of
obligation. Specifically: might we not
say that one who is exempt from tefillin cannot be entrusted with such a
serious mitzvah?
Let us remember than for
many medieval authorities (I cited them in my piece), women are explicitly
permitted to wear tefillin, despite their exemption. But this question emerges from the thread of
thought and psak exemplified first by the Maharam of Rothenberg and later the
Rema, who hold that women’s voluntary wearing of tefillin should not be
tolerated. For them and for those who
limit their rulings to practices in accord with them, is there a way of
justifying women who wear tefillin without claiming that Torah study is now a
gender-blind obligation, along with its physical corollary of tefillin? Put another way: is there a way to address the
concern of guf naki without addressing the more fundamental question of
obligation?
Perhaps not. Indeed, I argued that the whole gendered
application of the concept of guf naki was itself an effort to
reinterpret a strand of thought that originally assumed women could not put on
tefillin because they were exempt.
R. Yitzhak of Dampierre, respecting of this source but resistant to its
legal assumption, proposed the framework of guf naki as an alternate
framework for understanding its concern.
To the extent that guf naki is actually nothing more than the
preservation of an age-old resistance to women wearing tefillin in different
legal terminology, then this concern ought not to be easily dismissed. As I noted in my piece, I indeed would not
expect communities that continue to exempt contemporary women from Talmud Torah
to have more than a few isolated individual women who wear tefillin. Magen Avraham indeed argues that women
can never be trusted to keep their bodies sufficiently clean (or to control
their flatulence) as long as they are not truly obligated in this mitzvah by an
imperative more transcendent than their internal, personal motivation. Arukh Hashulhan says something
similar. I think it is correct to say
that there is a robust strand in halakhic thought that would never make much
room for women to wear tefillin so long as they are not obligated. And for one who understands guf naki
to be about flatulence—in keeping with the gemara’s discussion of this concept—it
is indeed hard to imagine that anything would change in the contemporary world. This strand can trace its roots back to the
tradition I cited from the Talmud Yerushalmi.
But this is only one side
of the story. Guf naki was the
language for channeling that age-old resistance in the context of a legal
culture that generally supported women’s voluntary performance of mitzvot. A reassessment of guf naki, however,
might be precisely the way that a legal culture generally deferential to the
Maharam and the Rema would find its way back to the many medieval positions
that did permit women to wear tefillin voluntarily. Guf naki is indeed about flatulence in
its Talmudic context, but it is not at all obvious that that is what it means
when R. Yitzhak borrows it from that context and genders it. I cited the Maharshal who is clear that
guf naki as used by R. Yitzhak ought to be understood as referring to
hygiene issues primarily related to economic status and the presence of
children. Anyone who adopts that
definition must acknowledge that there have been dramatic shifts in recent centuries
and decades such that the concern would no longer apply to most women at most
points in their life (or moments in the day).
Even Magen Avraham and Arukh Hashulhan do not obviously define guf
naki as related to flatulence in the context of this term’s use by R.
Yitzhak. If so, even they might not be
concerned about exempt women voluntarily performing this mitzvah in a time and
place where it is so easy to attain the standard demanded.
In short, to the extent guf
naki is actually about standards of cleanliness, it makes sense to take a
different approach in the contemporary world.
To the extent guf naki is the legal language for channeling an
age-old opposition to women voluntarily wearing tefillin (found in the
Yerushalmi but not in the Bavli), that opposition should not be expected to
fade until a more thoroughgoing reassessment of the mitzvah of Torah study
triggers a corresponding reassessment of the gendering of the obligation to
wear tefillin.